Misc 05/11/2021

Two Constitutional Court magistrates believe Catalan Speaker's sentence to be "disproportionate"

Xiol and Balaguer see "a devastating discouraging effect" on the right to political representation

2 min
Dolors Bassa, Carme Forcadell and Jordi Cuixart during the trial of 1-O at the Supreme Court.

Barcelona"A devastating discouraging effect on the right to political representation". This is what, according to Constitutional Court judges Juan Antonio Xiol and Maria Luisa Balaguer, the sentence of 11 and a half years in prison for the former Catalan Parliament Speaker Carme Forcadell causes. Xiol and Balaguer are the two members of the Constitutional Court that wrote a dissenting opinion to the plenary's decision to dismiss the appeal of Forcadell against the Supreme Court's sentence. In fact, they also did so in the appeals of Jordi Cuixart, Jordi Sànchez, Jordi Turull and Josep Rull. As they did in these cases, Forcadell's sentence is also considered "disproportionate". In the situation of the former president, another factor is added to the equation: the right to political representation, which they consider to have been violated.

Forcadell was not part of the Government that carried out the referendum, and the judges make this clear: they believe that Forcadell's actions "were not sufficient to consummate the criminal contribution that is alleged to have been concerted with the rest of those convicted of this crime". Their case focuses on Parliament, and they argue that not everything depended on her, since "the concurrence of the majority vote of the members of the Bureau and the full Parliament, outside her control and parliamentary functions, was required. However, Xiol and Balaguer point out that the actions carried out by the former Speaker could be considered "as disobedience of the Constitutional Court" or even "used for subsumption in the crime of sedition," but not enough to justify the sentence imposed.

In this sense, the magistrates also consider that the court did not sufficiently take into account the position that Forcadell held. They rule out parliamentary inviolability, but warn that the "higher level of protection against any interference" that Forcadell had as Speaker was not well weighted. In this sense, as they have done in previous dissenting opinions, they reject that both the Referendum and the protests at the headquarters of the Catalan Finance Department were "tumultuous uprisings", which justify the crime of sedition. "The typical action of public and tumultuous uprising has been projected on multitudinous public acts with isolated incidents," Xiol and Balaguer argue.

The magistrates admit that Forcadell "exceeded" her functions and emphasise the "gravity" of the facts, but insist that the sentence is "disproportionate", since the "sanctions must be adapted to the gravity of the infractions that are punished". In addition, they also show doubts about the crime of sedition, which they say has an "uncertain structure" and a "relative indeterminacy".

The majority opinion

The majority opinion, however, has taken for granted the Supreme Court's sentence for granted and upheld Forcadell's conviction. Thus, they rule out that she was protected by parliamentary inviolability and do not consider the penalty disproportionate or contradictory to fundamental rights. The sentence stresses that Forcadell ignored the Constitutional Court's warnings "in a stubborn manner", and that Parliament was outside the law, "with express renunciation of the exercise of the constitutional and statutory functions that are its own". And, precisely because of this renunciation of its functions, they consider that it was not protected by inviolability: "The support for the decisions adopted by the chamber are not protected by parliamentary inviolability as they manifestly deviate from the purpose of the prerogative".

With the arrival of the Constitutional ruling, Carme Forcadell can now take her conviction to European courts, just as Sànchez, Rull, Turull and Cuixart have done. It will be the European Court of Human Rights that will decide who is right.